Petition — BERLAND v. ILLINOIS (No. 78-1744)

Supreme Court of the United States

Octosper Term, 1978

ALBERT BERLAND,

Petitioner,

Vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

a

SHERMAN C. MAGIDSON

221 N. LaSalle Street

Chieago, Illinois 60601

Attorney for Petitioner

CARL P. CLAVELLI

on the brief

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

PAGE

TEDSTER Oo 1

Jurisdiction —........ PEE TEE TO Re 2

Neen ee ne i csesedanacucnsnaseceenen 2

Constitutional provisions involved _..............-.2-...........-.- 3

Nee cpssnnesenbemneomnnes 4

Reasons for granting the writ .............0...........2-.-.....0-.000 10

I.

LI.

Ill.

The appeal by the State from the Appellate

Court’s reversal of Berland’s conviction which

was based on the insufficiency of the evidence

at trial, and the Supreme Court of Illinois’ re-

view of the Appellate Court’s decision to acquit

Berland, violates the double jeopardy proscrip-

tions of the Illinois and Federal Constitutions ....

Circumstantial evidence of Berland’s business

relationship with the accused arsonist, Wolf,

Berland’s prior personal relationship with Wolf,

the poor condition of the subject property and

the false statement of Berland’s personal history

of fire losses on the fire insurance application do

not amount to proof beyond a reasonable doubt

that Berland aided or assisted in the commis-

sion of the arson as required by the Due Process

Clause of the United States Constitution —........

The defendant was denied his constitutionally

guaranteed right to the effective assistance of

i en

Ne wdecpesceveccenece

10

13

ii

. PAGE

Appendix A:

Opinion of the Llinois Supreme Court dated

IN, Gi TI scatters tip etna cass App. 1

Supplemental Opinion of the [llinois Supreme

Court dated February 20, 1979 ...00000.e App. 21

Appendix B:

RIE, scstenoninas LER iat NaN kde Conte MS aEN eee no APR App. 28

AUTHORITIES CITED

Cases

Anders v. California, 386 U.S. 738 (1967) 0.000.000.0002. 16

Benton v. Maryland, 395 U.S. 784 (1969) 0... 10

Bryan v. United States, 338 U.S. 552 (1990) -00220....... 10

Burks v. United States, 487 U.S. 1, 57 L.Ed.2d 1

I aR tas ithaca ceteris cen ciesanah ise tovasichenph tba sash eoeacaaciseegine 10, 12

Chapman v. California, 386 U.S. 18 (1967) ............... 17

Forman v. United States, 361 U.S. 416 (1957) 220.0... 10

Gideon v. Wainwright, 372 U.S. 585 (1963) 0000... 15

Glasser v. United States, 315 U.S. 60 (1942) 2200. 16, 20, 21

Green v. United States, 355 U.S. 184 (1957) 200... 13

Holloway vo Arkansas, 435 U.S. 475, 55 L.ed.2d 426

PORWR: wnccutaal avetianes a sienyesrudsdleitaclongiea ccaania tien nitaSececsaea vase 15, 16

In Re Winship, 397 U.S. 358 (1970) . ....................0..0... 14

People v. Berland, 52 LlApp.3d 96, 367 N..2d 181

PR ies CROs a a ee 13

People v. Mutter, 378 Ill. 216, 37 N.E.2d 790 (1941) ... 14

State v. Clay, 64 S.E.2d 117, 121 (W.Va. 1951) ............ 14

United States v. Alberti, 470 F.2d 878 (2 Cir. 1972) .... 18

lil

United States v. Ash, 413 U.S. 300 (1973)

United States v. Boudreaux, 502 F.2d 557 (5 Cir. 1974) 18

United States v. Carrigan, 548 F.2d 10583 (2nd Cir.

} + UR AER AT pe ceo Pata pCa oent ALE, NERO RR ERT ee lL ONT 18

United States v. Christopher, 488 F.2d 849 (9 Cir. 1973) 18

United States v. Gaines, 529 F.2d 1088 (7 Cir.°1976) —.. 18

United States ex rel. Hart v. Davenport, 478 F.2d 2038

(3 Cir. 1973)

United States v. LaRiche, 489 F.2d 1088 (6 Cir. 1977) 18

United States v. Mandell, 525 F.2d 671 (7 Cir. 1975) ... 18

United States v. Martin Linen Supply Co., 480 U.S. 564

EE oe a ae 11

Yates v. United States, 354 U.S. 298 (1957) oo... 10

Other Authorities

Article VI, Section 6 of the Constitution of the State

Oe I an eR te 10

Fifth Amendment to United States Constitution ....... 10

In the

Supreme Court of the United States

Ocrosper Term, 1978

No.

ALBERT BERLAND,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

Petitioner, Albert Berland, prays that a Writ of Cer-

tiorari be issued to review the judgment of the Illinois

Supreme Court.

OPINIONS BELOW

The opinion of the Illinois Appellate Court, dated Au-

gust 11, 1977, is reported as People v. Berland, 52 Ill.App.

3d 96, 367 N.E.2d 181 (1st Dist. 1977). The opinion and

supplemental opinion of the Illinois Supreme Court, dated

December 4, 1978 and February 20, 1979, respectively, are

reprinted in the Appendix.

2

JURISDICTION

The decision of the Illinois Supreme Court reversing

the decision of the Illinois Appellate Court was entered on

December 4, i978. <A timely Petition for Rehearing was

filed by the Petitioner; the petition was denied in a supple-

mental opinion on February 20, 1979. The jurisdiction

of this Court is invoked under Title 28 U.S.C. Section

1257(3) ; 62 Stat. 929.

QUESTIONS PRESENTED

1. May the State appeal from an appellate court de-

cision reversing a conviction on the basis that the evi-

dence was insufficient to support a finding of guilt beyond

a reasonable doubt without violating the constitutional

provisions against placing a person twice in jeopardy for

the same offense.

2. Was evidence of Berland’s and Wolf’s business and

social relationship, Wolf’s involvement in the-acquisition

of the subject property and Wolf’s limited managerial

role in Berland’s building, the poor physical and financial

condition of the building and the false statement of Ber-

land’s personal history of fire losses on the fire insurance

application proof beyond a reasonable doubt that Berland

aided and assisted Wolf in setting the building on fire.

3. Was Befland denied his Sixth Amendment right to

the effective assistance of counsel due to his trial counsel’s

actual incompetence during the conduct of the trial or due

to a fundamental conflict of interest in which Berland was

represented by the same counsel as Wolf who was charged

with burning a building owned by Berland without Ber-

land’s consent.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the Constitution provides in

pertinent part:

*

No person shall be * * * subject fer the same oifence

to be twice put in jeopardy of life or limb; * * *

deprived of life, liberty, or property, without due

process of law; * * * *

The Sixth Amendment to the Constitution provides in

pertinent part:

In all criminal prosecutions, the accused shall enjoy

the right * * * to have the Assistance of Counsel for

his defence.

The Fourteenth Amendment to the Constitution provides

in pertinent part:

Section I. * * * No State shall make or enforce any

law which shall abridge the privileges or immunities of

citizens of the United States, nor shall any State de-

prive any person of life, liberty, or property, without

due process of law, nor deny to any person within its

jurisdiction the equal protection of the laws.

Article V1, Section 6 to the Constitution of the State of

Illinois provides in pertinent part:

* * *

after a trial on the merits in a criminal case,

there shall be no appeal from a judgment of acquittal.

* + *

STATEMENT

On November 19, 1969, a fire of questioned origin par-

tially damaged a twelve-flatg@@sidential structure on Chi-

cago’s near southwest side. Approximately three and one-

half years following the fire, petitioner Albert Berland and

Louis Wolf were charged with arson and conspiracy in a

three-count indictment returned by the Grand Jury of the

Cireuit Court of Cook County. (C.2-6)' Count I charged

that Wolf, alone, committed arson by burning Berland’s

building without Berland’s consent, in violation of Section

20-1(a) of the Criminal Code of Illinois. Count II

charged that Wolf and Berland, together, committed arson

by burning Berland’s building with intent to defraud the

American Casualty Company and the Illinois Fair Plan

Commission, in violation of Section 20-1(b) of the Criminal

Code of Illinois. Count II] charged that both defendants

conspired on November 19, 1969, to burn Berland’s build-

ing in violation of Section 8-2 of the Criminal Code of

Illinois and that, in furtherance thereof, Wolf set fire to

the building. Both defendants were represented by a

single retained counsel throughout the trial (C.10), though

Wolf retained additional counsel near the close of the

State’s case-in-chief nine days after the commencement of

trial.? (Tr. 200-03)

'The designation “C” is used to refer to common law record,

while the designation “Tr.”’ refers to the transcript at trial.

2 Other attorneys filed appearances for each defendant after the

trial court’s finding of guilty, but before the post-trial motion stage

of the proceedings. These counsel presented the post-trial motions.

(E.G., C.93-96)

‘\

5

Both defendants waived their right to trial by jury.’

Count I, charging Wolf alone with having burned Ber+

land’s building, was nolle prossed at the conclusion of the

State’s evidence. (Tr. 321)

Though there was direet eyewitness evidence at trial

that the fire had been set by Wolf, there was no evidence

showing Berland’s presence at the scene of the fire. (Tr.

379-8) Instead, the prosecution attempted to connect Ber-

land to Wolf’s alleged conduct by circumstantial evidence

which showed that Berland and Wolf had known and con-

ducted business with each other for over thirty years, and

were sometimes involved together in ownership of the sub-

ject property and other similar properties. (Tr. 60, 216,

233, 498-502, 610-11)

Other evidence showed the lack of profitability of the

subject property and various court actions initiated against

it because of its alleged poor physical condition. (P.Ex. 5,

pp. 6-9, 29-38; P.Exs. 14-15.) :

Still.other evidence disclosed that Berland had given an

incorrect negative answer on an application for fire insur-

ance regarding ‘‘the applicant’s five-year loss record for

fire.’’ (P.Ex. 10) At an earlier civil trial in which Berland

sought compensation for the fire loss from the insurer of

the building, Berland had stated that he thought the ques-

8 No questions were raised at any stage of the trial proceeding

concerning the ‘anomaly of one attorney’s representing, according

to Count I of the indictment, the accused and the victim. At the

conclusion of the State’s evidence, however, the trial judge did

question the feasibility of continuing the proofs with the case in its

hitherto unnoticed posture—with Petitioner Berland described as

a victim in Count I and as a defendant in Counts II and III.

(Tr. 315) Having had this inconsistency brought to its attention,

the State moved to nolle prosequi Count I. (Tr. 321) Defense

counsel, apparently, took no clue from this incident.

6

tion referred only to the building for which the insurance

was being sought.* (P.Ex. 8, pp. 415-6)

At the conclusion of all the evidence, the trial judge

found both defendants guilty as charged in Counts II and

LI. (Tr. 609-15) However, after arguments on the de-

fendants’ post-trial motions, the trial judge ruled that

Count III was brought beyond the applicable period of

limitations. Accordingly, the defendants’ motions in ar-

rest of judgment as to Count III were granted. (Tr. 889-92)

The defendants’ other post-trial motions challenging, in

substance, the sufficiency of the evidence and the adequacy

of their representation at trial, and alleging prosecutorial

misconduct and newly-discovered evidence, were all denied.

(Tr. 902-3)

While reciting his original findings of guilt, the trial

judge had remarked that the property was insured ‘‘far in

excess’’ of its value, ‘‘probably three times at least the

value of the property.’’ (‘'r. 611) When defense counsel

attempted to prove during post-trial motions that the build-

ing was required to be insured for at least $104,559.95,

arguing that the failure of defense counsel to introduce the

value of the property under Illinois insurance law was one

instance of incompetence of trial counsel, the Court

responded :

4 Interestingly, as the Court of Appeals held in the civil facet of

this case (Lawndale National Bank v. American Casualty Com-

pany, et., 7th Cir. 1973, 489 F.2d 1385), the alleged misrepresen-

tations in the application, not being of sufficient significance for

incorporation into the policy itself, were not sufficient to void the

policy. See e.g., Anderson v. John Hancock, Mut. Life Is. Co.,

316 Ill. App. 338; People v. White, 59 I11.2d 416, 322 N.E.2d 1

(1974). In fact, the Seventh Circuit noted that the Illinois Fair

Plan was enacted through various federal and state statutes to

make insurance available in admittedly “high risk urban areas

where ordinary insurance would be unavailable.”

7

‘*One instance of so-called incompetence of counsel

warrants particular comment. The defendants argue

the trial counsel was incompetent because he failed to

offer proof that the.replacement value of the subject

building was equal to the $100,000 insurance. This

argument overlooks the fact that the market value of

the property was one-third of that figure, and that for.

that reasons outlined in the Court’s previous finding

of facts, it is unlikely that a building with a $35,000

fair market value, which was a financially losing prop-

osition, would be replaced by a $100,000 structure.

In any event, the gist of the fraud upon the insurer

was the burning of the building by the insured regard-

less of what the replacement cost was; regardless of

what the fair market value was, and regardless wheth-

er or not the building was under or over-insured.’’

(Tr. 896-7)°

Each defendant was sentenced to a term not less than

144, nor more than 414 years in the Illinois State Peniten-

tiary and to pay a fine of $10,000. (Tr. 927)

On appeal to the Illinois Appellate Court, Berland urged

that the evidence was insufficient to prove his involvement

in the alleged arson scheme and that he was denied his

Sixth Amendment right to the effective assistance of coun-

sel by reason of his retained counsel’s actual incompetence

as well as the constructive incon. »etence that follows an

attorney’s representing defendants with conflicting inter-

ests.

> Tllinois law required that all buildings be insured for at least

eighty percent of their “actual cash value.” Actual cash value

was determined by taking the replacement cost of a building and

subtracting the depreciation for age. Market value and purchase

price were not considered in determining actual cash value. The

policy issued with an eighty percent co-insurance clause which

under Illinois law requires a certain amount of insurance to avoid

a penalty proportionate to the amount of under-insurance for other

than a total loss. (Tr. 75-6, 397-403) However, no evidence of

the “actual cash value” of the building was offered at trial.

8

Upon review, the Appellate Court was moved to com-

ment that ‘‘|t]he State’s entire case against Berland is

based on these inferences of normal, legal aetivity.’? The

Appellate Court reversed Berland’s conviction on August

11, 1977 because it could ‘find no evidence to connect the

defendant with the burning of this building.’? The lower

court also held that one attorney could not represent both

defendants at trial due to the charge in Count 1 that Wolf

burned the building without Berland’s consent. Relying

upon Glasser v. United States, 315 U.S. 60, 67 (1942), the

Illinois Appellate Court noted that a conflict of interests

between defendants in a close case required reversal of the

convictions without showing specific instances of actual

prejudice.” People v. Berland, 52 IL. App.3d 96, 867 N.K.2d

181 (1st Dist. 1977)

The State, pursuant to Rule of the Illinois Supreme Court

(Ill. Rev. Stat., 1977, Ch. 110A, $315), sought leave to ap-

peal to the Illinois Supreme Court urging the reversal

of the decision of the Appellate Court. After granting the

State’s motion to hear the case, the Lllinois Supreme Court

reversed the decision of the Appellate Court. In its opinion,

the Illinois Supreme Court discounted defense contentions

that the trial court’s finding of guilt was due in part to his

erroneous belief that the property was over-insured. The

® Besides the conflict of interest issue relied wpon by the Appellate

Court, Berland complained that his trial counsel’s conduct of the

case was of such low caliber as to deny Berland reasonably effective

legal representation. Berland’s conviction rested on inferences drawn

from various circumstances. Counsel's inattention to the case, his

lack of familiarity with the law of conspiracy and of evidence in

general, his inability to understand insurance law and the necessity

of showing why Berland’s property had to be insured as it was,

all permitted Berland’s conviction for arson to be based on con-

jecture and negative innuendos. See, United States ex rel. Williams

‘v. Twomey, 7 Cir. 1975, 510 F.2d 634, 640-1.

9

Supreme Court concluded from the trial judge’s final state-

ment that Berland was convicted because of his intent to

burn the building for the insurance proceeds regardless of

the amount of insurance taken out on the property. In so

holding, the Supreme Court determined that the cireum-

stantial ‘‘evidence indicate|d] an intent to defraud an

insurance company.’ (App. p. 17)

The Supreme Court of Illinois also disagreed with the

Illinois Appellate Court’s determination that both Berland

and Wolf were denied the effective assistance of counsel.

People vy. Berland, supra, 52 Ul. App. 3d at p. 100-1, 103.

The Court held that **| A} defendant must show an actual

conflict of interest manifested at trial in order to prevail

in a constitutional claim of ineffective assistance of counsel

due to joint representation of co-defendants by a single

attorney. Defense contentions that trial counsel could

not, beeause of his conflict, present evidence favorable to

Berland despite Wolf's apparent involvement were re-

jected as speculative by the Illinois Supreme Court. (App.

p. 7)

A Petition for Rehearing raising the additional issue of

double jeepardy based upon the recent decision in Burks

v. United States, 437 U.S. 1 (1978) was rejected without

discussion on February 20, 1979 in a supplemental opinion.*

se

*The sole fact contained in the opinion of the Illinois Supreme

Court which has not been alluded to in this Statement is the false

notarization of Berland’s signature upon the application for the

fire insurance policy. (App. p. 17) We view this fact as incidental

since Berland never denied signing the application for fire insurance.

(P.Ex. 8 p. 414)

*“Defendant Albert Berland’s petition for rehearing is denied.”

10

REASONS FOR GRANTING THE WRIT

I.

The appeal by the St-*e from the Appellate Court’s re-

versal of Berland’s conviction which was based on the in-

sufficiency of the evidence at trial, and the Supreme Court

of Illinois’ review of the Appellate Court’s decision to ac-

quit Berland, violates the double jeopardy proscriptions

of the Ilinois and Federal ‘Constitutions.

The decision of the Illinois Appellate Court, in form and

effect, acquitted Berland of the charge of arson with intent

to defraud an insurer the same as if the order had been en-

tered at the trial level. Article VI, Section 6 of the Con-

stitution of the State of Illinois, and the Double Jeopardy

Clause of the Fifth Amendment to the United States Con-

stitution, bar the State from appealing any judgment of

uequittal. See, Benton v. Maryland, 395 U.S. 784 (1969).

In Burks v. United States, 437 U.S. 1,57 L. Ed. 2d 1 (1978)

the Supreme Court reviewed—and reversed as inconsistent

with each other and with the Double Jeopardy Clause—

several of its prior decisions” which had considered when

a reviewing court, upon reversal of a conviction, may order

a new trial without violating the prohibition against placing

a defendant twice in jeopardy for the same offense. Burks

was convicted over his claims that he suffered from a men-

tal illness at the time of the offense and could not be held

criminally responsible for his conduct. Burks admitted

the factual elements of the charge, but argued that the evi-

dence was insufficient to show he was sane at the time of

® Bryan v. United States, 338 U.S. 552 (1950); Yates v. United

States, 354 U.S. 298 (1957) ; and Forman v. United States, 361 U.S.

416 (1957); Burks v United States, supra, 57 L.Ed.2d at 10.

11

the offense. The Court of Appeals agreed and reversed

the conviction. l[lowever, rather than terminating the case

against Burks, the court remanded the matter to the trial

court for a new trial.

The question posed for review by this Court was ‘‘wheth-

er a defendant may be tried a second time when a review-

ing court has determined that in a prior trial the evidence

was insufficient to sustain the verdict of a jury.’’ 57 L.Ed.

2d at pp. 5-6.

After identifying the conflicting portions of its prior

holdings, the Court unraveled the inconsistencies by

affording absolute finality to a decision in a criminal case

which resolves the factual elements in the defendant’s

favor, even if that decision is rendered by a reviewing court.

The Court reaffirmed that a reversal by a reviewing court

has the effect of a judgment of acquittal which may ‘‘not

be reviewed, on error or otherwise, without putting [a

defendant| twice in jeopardy, and thereby violating the

Constitution.”” See also, United States v. Martin Linen

Supply Co., 430 U.S. 564, 571 (1977).

It is unquestionably true that the Court of Appeals’

decision ‘‘represente|d| a resolution, correct or not,

of some or all of the factual elements of the offense

charged.’’ United States v. Martin Linen Supply Co.,

430 US 564, 571, 51 L Ed 2d 642, 97 S Ct 1849 (1977).

By deciding that the government had failed to come

forward with sufficient proof of petitioner’s capacity

to be responsible for criminal acts, that court was

clearly saying that Burks’ criminal culpability had not

been established. If the District Court had so held in

the first instance, as the reviewing court said it should

have done, a judgment of acquittal would have been

entered and, of course, petitioner could not be retried

for the same offense. See Fong Foo v. United States,

369 US 141, 7 L Ed 2d 629, 82 S Ct 671 (1962) ; Kepner

v. United States, 195 US 100, 49 L Ed 114, 24 S Ct 797

(1904). Consequently, as Mr. Justice Douglas correct-

12

ly perceived in Sapir, it should make no difference that

the reviewing court, rather than the trial court, deter-

mined the evidence to be insufficient, see 348 US, at

374, 99 L Ed 426, 75 S Ct 422. The appellate decision

unmistakably meant that the District Court had erred

in failing to grant a judgment of acquittal. To hold

otherwise would create a purely arbitrary distinction

between those in petitioner’s position and others who

would enjoy the benefit of a correct decision by the

District Court. See Sumpter v. DeGroote, 552 F2d

1206, 1211-1212 (CA7 1977). (Footnote omitted) (Km-

phasis in original), Burks v. United States, supra, 57

L.ed.2d at p. 9.

The Supreme Court attributed the ‘‘present state of con-

ceptual confusion’? in double jeopardy analyses to the

failure to distinguish ‘‘between reversals due to trial error

and those resulting from evidentiary insufficieney.’? Burks

v. United States, supra, 57 L.Kd.2d at p. 12. The Court

pointed out that a reversal for trial error is without any

implication of a defendant’s guilt or innocence, but is a de-

termination that there was a fundamental! procedural error

during the trial process which does not bar a retrial be-

cause both the sovereign and the defendant are entitled to

receive a fair adjudication of guilt or innocence free from

error.

The same cannot be said when a defendant’s convie-

tion has been overturned due to a failure of proof at

trial* ** Moreover, such an appellate reversal means

that the Government’s case was so lacking that it

should not have even been submitted to the jury. Since

we necessarily afford absolute finality to a jury’s ver-

dict of acquittal—no matter how erroneous its decision

—it is difficult to conceive how society has any greater

interest in retrying a defendant when, on review, it is

decided as a matter of law that the jury could not

properly have returned a verdict of guilty. (Footnote

omitted) (Emphasis in original), Burks v. United

States, supra 57 L.ed.2d at pp. 12-13.

13

Since Burks, supra, holds that an order of a reviewing

court reversing a conviction for insufficient evidence is the

equivalent, for jeopardy purposes, of a judgment of aequit-

tal in the trial court, further prosecution by petition to

have the judgment of the Illinois Appellate Court reviewed

under the Illinois Supreme Court’s discretionary powers

was barred by the double jeopardy clauses of the Illinois

and United States Constitutions. Cf. Green v. United States,

355 U.S. 184, 187-8 (1957). We respectfully submit that

the proceedings following the Illinois Appellate Court’s

decision reversing Berland’s conviction for insufficient evi-

dence appear to be barred under this Court’s recent hold-

ing in Burks as an unconstitutional attempt to prosecute

Berland following an adjudication of his innocence based

on factual considerations.

II.

Circumstantial evidence of Berland’s business relation-

ship with the accused arsonist, Wolf, Berland’s prior per-

sonal relationship with Wolf, the poor condition of the sub-

ject property and the false statement of Berland’s personal

history of fire losses on the fire insurance application do

not amount to proof beyond a reasonable doubt that Ber-

land aided or assisted in the commission of the arson as re-

quired by the Due Process Clause of the United States

Constitution.

Though conceding that the only evidence introduced

against Berland was circumstantial in nature, the Illinois

Supreme Court upset the decision of the appellate court

which could ‘‘find no evidence to connect | Berland] with

the burning of this building.’’ People v. Berland, 52 Tl. App.

3d 96, 367 N.E.2d 181, 187 (1st Dist. 1977). While we agree

in the abstract that a defendant may be accountable for the

offense without personally having set the fire, we respect-

fully submit that the facts of Berland’s prior business and

14

social relationship with Louis Wolf, the financial and phys-

ical condition of the building and the ‘‘false, notarized

statement’’ on the fire insurance application are woefully

inadequate to produce a conviction ‘‘upon proof beyond a

reasonable doubt of every fact necessary to constitute the

crime,’’ as required by the Due Process Clause. In Re

Winship, 397 U.S. 358, 364 (1970) (App., infra, pp. 16-17).

In State v. Clay, 64 S.E.2d 117, 121 (W.Va. 1951), the

defendant was convicted of arson with the intent to de-

fraud several insurance companies. /-vidence disclosed that

following his separation from his wife, the defendant se-

cured insurance in an amount five times the value of cer-

tain personal property in his wife’s possession after mis-

representing to the insurers that the property was in his

home. Less than three months after the policies went into

effect, an incendiary fire destroyed the property the day

after the defendant had threatened and struck his wife for

having him charged with non-support. On review, the de-

fendant’s conviction was reversed though he was ‘‘the one

person in the world to whose interest it was to have this

building and its contents destroyed.”’

A similar result was entered by the Illinois Supreme

Court in People v. Mutter, 378 Ll. 216, 37 N..2d 790, 794-5

(1941). Two brothers were convicted of burning their

store. The evidence was wholly circumstantial and included

the defendants’ poor financial condition, and a policy of

insurance which was about to be cancelled in an amount

exceeding the value of the property. The evidence against

Max Mutter also included his presence at the store shortly

before the fire and witnesses who testified that he had re-

moved some of the stock before the fire broke out. The

Court affirmed his conviction but reversed the conviction

of the other brother, Martin, stating:

15

The evidence above set forth demonstrates that the

People have failed to prove Martin Mutter guilty be-

yond a reasonable doubt. Throughout the evidence on

behalf of the People he is hardly mentioned, except on

the questions of title and his family and business rela-

tionships with the other two defendants. And through-

out all the evidence there is nothing to indicate that

Martin himself actually did the work of setting the

fire, was even present at the time of its preparation,

or that he helped plan it. And there is nothing in his

conduct after the fire was started to prove his guilt.

We urge this Court to review the decision of the Illinois

Supreme Court in light of these holdings, and the opinion

of the appellate court that there is a reasonable hypothesis

to be drawn from the evidence that is consistent with Ber-

land’s innocence.

ITI.

The defendant was denied his constitutionally guaran-

teed right to the effective assistance of counsel.

In rejecting Berland’s claim that he was denied the effee-

tive assistance of counsel because of his retained counsel’s

allegiance to his co-defendant Wolf, charged in the same

indictment with burning Berland’s building without Ber-

land’s consent, the Illinois Supreme Court has held that

Berland ‘‘must show an actual conflict of interest mani-

fested at trial in order to prevail ...’’? This position is

inconsistent with Holloway v. Arkansas, 435 U.S. 475, 55

L.ed.2d 426 (1978), and incorrectly assumes that the trial

judge is under no obligation to make inquiry once he is

placed on notice that there is a potential conflict between

the interests of defendants represented by the same attor-

ney.

It is axiomatic that every defendant is entitled to have

the assistance of counsel (Gideon v. Wainwright, 372 US.

335 (1963)), and that the denial of such assistance so ef-

16

fects his right to a fair trial that a conviction must be

reversed even if no particular prejudice is shown and even

if the defendant was clearly guilty. /Jolloway v. Arkansas,

435 U.S. 475, 55 L.ed.2d 426, 487 (1978). The purpose of

counsel is to preserve the adversary contest by putting

the prosecution to it? full burden of proof through coun-

sel’s role as an ‘‘active advocate’? on his client’s behalf.

United States v. Asis U.S. 300 (1973); Anders v. Cali-

fornia, 386 U.S. 738, 744 (1967).

The recent decision in Holloway v. Arkansas, 435 U.S.

475, 55 L.Ed. 2d 426 (1978), is instruetive in determining

the proper legal standards to be applied to a claim of

prejudice from joint representation. In Holloway, supra,

the trial judge had been informed of the possibility of a

conflict of interest between the jointly represented defen-

dants, but denied counsel’s motion for appointment of sep-

arate counsel. On appeal from their conviction, the Su-

preme Court of the State of Arkansas ruled, as did the Illi-

nois Supreme Court, that ‘¢ ‘| T|he reeord must show some

material basis for an alleged conflict of interest, before re-

versible error occurs in single representation of co-defen-

dants.’ 539 S.W. 2d 435, 439 (Ark. 1977).’’ 55 L.Ed.2d at

432. (App., fra, p. 7)

After examining its prior decision in Glasser vy. United

States, 315 U.S. 60 (1942), and noting that it is the funetion

of the trial judge to ensure that the accused has the assis-

tance of counsel when the possibility of a conflict of inter-

est between co-defendants is brought to the trial court’s

attention (435 U.S. at 484, 55 L.d.2d at 434), the Supreme

Court ordered the petitioners’ convictions reversed; in so

doing, this Court refused once again to speculate upon the

effects of the petitioners’ joint representation, and rejected

those decisions that require the defendant to demonstrate

prejudice before ordering a reversal, stating that the right

17

to have the assistance of counsel was presumed to have

been violated regardless of whether prejudice was inde-

pendently shown.

Though the Court declared that it would not resolve the

divergent approaches to this issue which courts have

adopted when the possibility of a conflict had not been

brought to the trial court’s attention (55 L.Kd.2d at 433-4),

the Court dismissed as not ‘‘susceptible to intelligent, even-

handed application’? any rule which requires a showing of

specific prejudice due to joint representation, explaining

that ‘‘the evil... is in what the advocate finds himself

compelled to refram from doing ... Thus, an inquiry into

a claim of harmless error here would require, unlike most

cases, unguided speculation.’’ 55 L.Ed.2d at 488 (emphasis

in original). See alse, Chapman v. California, 386 U.S. 18,

23 (1967).

In language applicable to this case, counsel for these de-

fendants could hardly have been expeeted to spread of ree-

ord those factors favorable to his one client, Berland, but

unfavorable to his other client, Wolf. Thus, the decision

in Holloway does not permit any inquiry which relies upon

the manifestation of actual conflicting interests in the ree-

ord of trial. For this reason, the proper inquiry must be

limited in scope to one which requires only a ‘*showing of

a possible conflict of interest or prejudice.’’ United States

ex rel. Hart v. Davenport, 478 F.2d 208, 210 (8 Cir. 1973) .7°

See, Holloway vy. Arkansas, supra, 55 L.Md.2d at 436-8;

ef. App., ifra, pp. 7-8.

We do not advocate automatic reversal whenever an attorney

represents co-defendants. It is only when the record discloses a

real possibility of conflicting interests, such as that found by the court

in United States ex rel. Hart vy. Davenport, supra, 478 F.2d at

207-8, 269, where the court considered the “different positions” of

the defendants and pointed to an “obvious defense strategy” that

was not employed on petitioner Hart’s behalf.

18

However, even those courts that require evidence of

prejudice from joint representation when the denial of

assistance is not claimed until after trial, recognize the

duty of the trial judge to advise the defendants as soon

as the possibility of conflict comes to the court’s attention.

United States v. LaRiche, 439 ¥.2d 1088, 1095, n.5 (6 Cir.

1977); United States v. Boudreauax, 502 2d 557, 8 (5 Cir.

1974); United States v. Carrigan, 543 F.2d 1053 (2nd Cir.

1976); United States vy. Alberti, 470 F.2d 878, 881-2 (2 Cir.

1972); United States vy. Christopher, 488 F.2d 849, 851 (9°

Cir. 1973); see, United States v. Mandell, 525 2d 671, 676

(7 Cir. 1975) (cases eited); cf. United States v. Gaines, 529

F.2d 1038, 1044 (7 Cir. 1976).

Count 1 of the indictment was a clear indication to both

court and counsel that there was a conflict of interest be- |

tween Berland and Wolf. However, Count | did not create

the conflict in this ease. Counsel created it when he ignored

the warning clearly spelled out in Count I that his two

clients had adverse interests. Thus, we do not point to

Count I as the reason for the conflict; we point to the

charge as an indication to all—-and ignored by all—that

such a conflict existed.

Counsel’s allegiance to Wolf prohibited him from being

sé 99

active advoeate’’ on Berland’s behalf, and barred any

cross-examination of his other client Wolf, identified as

an

the arsonist, or inquiry into Wolf’s motive to act alone.

Even if trial counsel could be intellectually expected, under

these circumstances, to introduce evidence during the de-

fense case showing that Wolf had cause to burn the build-

ing because of some grudge or other motive contrary to

Berland’s interests, he could not ethically have done so.

The situation is closely analogous to that encountered in

United States v. Gaines, 529 F.2d 1088 (7 Cir. 1976), where

trial counsel originally represented Gaines and two co-de-

19

fendants who eventually had conflicting trial interests.

Prior to trial, counsel withdrew as the attorney for the two

defendants whose interests conflicted with Gaines’. Never-

theless, as Judge Tone explained:

“The attorney’s subsequent withdrawal from his

representation of Hubbard and nglish in this case

did not remove the confliet. It continued to be his

duty to refrain from taking any action adverse to their

interests in a manner in which he had represented

them. Cf. Marketti v. Fitzsimmons, 373 F.Supp. 647

(W.D.Wis. 1974); and cf. A.B.A. Code of Professional

Responsibility, DR. 5-105 (A), (B),’? 529 F.2d at 1042.

(Mmphasis added)

So here, though the offending count was removed, trial

counsel was still forbidden to introduce evidence exculpa-

tory of Berland, but ineulpatory of Wolf. And it is for

this reason that the cases, in precluding divided loyalties,

relate back to the moment at which the divided loyalty 1s

created. As Judge Tone explained:

“(Counsel’s withdrawal from representation of some

of the defendants, even af it occurs before trial, may

not obviate the confliet problem. It does not do so if

either his continuing duty to do nothing which would

injure the interests of his former clients in connection

with the subject matter of his representation of them

or any other incentive to avoid injuring his former

clients is in confliet with his duty of undivided loyalty

to the client he continues to represent.’? 529 F.2d at

1044 (Mmphasis added)

No citation of authority is necessary to refer to trial

counsel’s duty to prepare a case, in advance of trial, in

suck a manner as to bring to the attention of the trier of

fact evidence favorable to his elient. It is equally well-

established that trial counsel is to employ cross-examina-

20

tion to the same end. In this case, trial counsel could not,

beeause of bis conflict, devote his attention in preparation

and cross examination to factors explaining Berland’s inno-

cence despite Wolf’s apparent involvement. The obvious

rationale underlying the tenet precluding divided loyalties

is not so much a fear of the actions which such a situation

rauses the attorney to take as it is a fear of resulting in-

action by the attorney. In Glasser vy. United States, 315

U.S. 60 (1942), the Supreme Court held that an attorney’s

representation of defendants with potentially inconsistent

defenses was in violation of the Sixth Amendment to the

Constitution. It is significant that the Glasser Court went

far beyond holding that the facts of the case demonstrated

a conflict: ‘‘Irrespeetive of any conflict of interest, the

additional burden of representing another party may con-

cewably impair counsel’s effeetiveness.”? 315 U.S. at 75

(emphasis added). For precisely this reason the Glasser

Court admonished that ‘‘|t/he right to have the assistance

of counsel is too fundamental and absolute to allow courts

to indulge in nice calculations as to the amount of preju-

dice arising from its denial.”? 315 U.S. at 76.

Any effort to distinguish Glasser on the basis that the

defendants there objected to their joint) representation

represents a shocking attempt to saddle the client) with

responsibility for one of the evils of our profession. Judge

Tone had this to say about the argument:

“Like other constitutional rights, this right | to

counsel whose loyalty is not divided between clients

with conflicting interests | may be waived, * * * but the

waiver must be deliberate and made with an under-

standing of the conflicting interests and the dangers

resulting from them,’’ United States v. Gaines, supra,

529 F.2d at 1045.

21

In order to implement this principle cffeetively, the

Gaines Court established the following procedure :

“The trial court clearly does have an obligation,

whether counsel is appointed or retained, to be alert

for indicia of conflict at all slages of the proceeding.

meluding during trial. United States v. Mandell, 525

Wid 671, 677 (7th Cir. 1975). When the possibility of

a contliet appears during trial, the court must investi-

gate the relevant faets, advise the defendant, and de-

termine whether continued representation, absent

waiver, would violate the sixth amendment. United

States v. Jeffers, 520 F.2d 1256, 12693 n.11 (7th Cir.

1975). * * * (emphasis added)

“When an actual conflict appears, the court must

bring the faet of its existence and the resulting dan-

gers which are reasonably foreseeable to the attention

of each affeeted defendant so he can make an informed

judgment at that time as to whether he wishes new

counsel or wishes to continue with present counsel.

Having done that, the court has fulfilled its duty and,

if, despite the conflict and the attendant dangers, the

defendant elects to continue with the same counsel, he

thereby waives his sixth amendment right.” * *’? 529

2d at 1043-44.

We urge this Court to adopt the Games procedure and,

thereby, resolve the split among the Circuits noted in /7ol-

loway v. Arkansas, supra, 435 U.S. at 483-4, 55 Led.2d at

433-4, and place an affirmative duty upon the trial judge

to assure that criminal defendants represented by single

counsel are advised of the possibility of conflieting, inter-

ests. We note, however, that in the instant case where an

actual conflict was manifested in the charges brought to

trial that this Court’s prior decisions in Glasser vy. United

States, supra, 315 U.S. at p. 71, and //olloway v. Arkansas,

supra, 435 U.S. at pp. 434-5, place a duty of inquiry upon

the trial judge which was not met.

CONCLUSION

For the above and foregoing reasons, we respectfully

urge the Court to issue its Writ of Certiorari to the Su

preme Court of the State of TWinois.

Respectfully submitted,

SuerMan (. Maagipson

Attorney for Petitioner

Carn PL CLAVELLA

on the brief

APPENDIX

mm,

APPENDIX A.

Docket Nos. 50012, 50534 cons... Agenda 7-—May 1978.

THE PROPLE Ol THE STATE OF TLLINOIS,

Appellant, v. ALBIERT BERLAND ef al., Appellees.

MR. JUSTICE KLUCZYNSKE delivered the opinion of

the court:

Defendants, Louis Wolf and Albert Berland, were con-

vieted of arson with intent to defraud an insurer (IIL. Rev.

Stat. 1969, ch. 38, par. 20-1(b)) after a joint bench trial in

the cireuit court of Cook County. Both were sentenced to

terms of 144 to 41% years in the Illinois State Penitentiary

and fined $10,000. The appellate court reversed the convic-

tions on two grounds: that the single, retained counsel

could not effeetively represent the conflicting interests of

the two defendants and that there was insuflicient evidence

of guilt to sustain the convietions. (52 ll. App. 3d 96.) We

granted the State’s petition for leave to appeal under our

Rule 315 (65 Tl. 2d R. 315).

On November 19, 1969, a fire occurred in a 12-unit, three-

story apartment building at 715 South Lawndale in Chi-

cago, Llinois, owned by Berland through a land trust at

the Lawndale National Bank. Firemen arrived at the scene

at 11:15 or 11:30 a.m., and the fire was extinguished by

about 12:30 p.m. An arson investigator from the Chicago

Fire Department determined that the fire had been set. It

had started when an aceclerant was poured onto the floor

in the bathroom or in the area between the bathroom and

living room in a third-floor apartment and ignited.

Berland, through the Lawndale National Bank as trustee,

initiated suit against the insurer of the building in the

United States district court to recover $35,000 under the

App. 2

fire insurance policy. The insurance company interposed

as defenses that Berland had misrepresented his fire-loss

history in the insurance application and that the fire was

the result of arson. The jury returned a general verdict in

favor of the insurance company. The court of appeals re-

versed on the ground that the misrepresentations in’ the

application were not a defense to the poliey since the appli-

cation was not incorporated in or attached to it. A new

trial was required beeause the general verdiet precluded

determining whether the jury had aceepted the misrepre-

sentation or arson defense, and the court refused to accept

the arson defense as a matter of law. Lawndale National

Bank v. American Casualty Co, (7th Cir. 1973), 489 F.2d

1384.

An Illinois grand jury returned indictments against Wolf

and Berland on May 11, 1973, about O14 years after the fire,

while the civil case was pending on appeal in Federal court.

Count I charged Wolf alone with knowingly damaging the

real property of another without his consent under section

20-1(a) of the Criminal Code of 1961 (TIL Rev. Stat. 1969,

ch, 38, par. 20-1(a)). Count TL charged Wolf and Berland

fogether with knowingly damaging a building by means of

fire with intent to defraud an insurer (IIL Rev. Stat. 1969,

ch. 38, par. 20-1(b)). Count TIL charged both defendants

with conspiracy to commit arson (Il, Rev. Stat. 1969, ch.

38, par. 8-2).

A single, retained attorney entered his appearance on

behalf of both defendants. Maeh defendant waived jury

trial on January 14, 1974.) Both defendants pleaded not

guilty. Berland did not testify. Wolf denied he was present

at the time of the fire. During the presentation of the

State’s case, attorney Jack G. Stein entered his appearance

as additional co-counsel for defendant Wolf. Thereafter, at

the conclusion of the People’s case, count I, charging Wolf

App. 3

with the burning of the building without the owner’s

consent, was nol-prossed. Additional and separate counsel

for each defendant appeared to present post-trial motions.

A post-trial motion in airest of judgment on the con-

spiracy count for both defendants was allowed on the

grounds that the statute of limitations on that count had

run (Tl Rev. Stat. 1969, eh. 88, par. 3—5(b)). Judgment

on the finding of guilty on the charge of arson with intent

to defraud an insurer was entered.

The State introduced transeripts of depositions and tes-

timony of Wolf and Berland from the civil case in Fed-

eral court. They were admitted pursuant to a stipu-

lation but subject to a defense objection to references to

prior fires. The trial judge correetly ruled he would

consider the prior fires only if there was no remoteness

and if there was a linkup between the offense in question

and the prior fires, in accord with People v. Bishop (19384),

359 TL 112, 119-20.

The trial court also admitted into evidence a series of

housing court files concerning properties found to be in

violation of the Chicago housing code (Municipal Code of

Chicago, ch. 78). They were admitted for the limited

purpose of showing prior business relationships between

Wolf and Berland in the subject and other properties, not

to show prior fires. The files themselves or the testimony

of Wolf and Berland in the transeripts from the Federal

proceedings indicated that the properties belonged either

to one of the defendants, his nominees or aliases, or those

whose addresses were businesses owned by Wolf.

In 1966 defendant Wolf had negotiated the purchase of

the building at 715 South Lawndale for Berland. Ber-

land had introduced Wolf to the seller as the prospee-

tive purchaser and identified himself as the broker. Wolf

App.4

purchased the property in his name and transferred it to

Berland as his nominee. Tithe was placed in a land trust

established by Berland. At one point Wolf’s nephew was

given an interest in the property as collateral for a loan by

Wolf to Berland. The interest was returned to Berland

when the loan was paid. ‘Fred Cooper,’ an alias used by

Berland, was listed as the beneficiary of the land trust at

one time. The addresses given for ‘Fred Cooper’? were two

of Wolf?’s business addresses.

Wolf helped manage the property by selecting tenants

and collecting rent. Tle was frequently present in’ the

vicinity of the building. Wolf examined its physical eon-

dition, ordered eoal for it, and referred econtraetors to

Berland.

In June 1969 Berland applied for fire insurance on the

property. The application was purportedly notarized at

Wolf's office by Maurice Blumenthal on June 20, 1969.

Blumenthal had died in a car aceident in September of

1968, and the date noted for the expiration of his notary’s

commission was in-error, The application contained a false,

negative answer toa question requesting “the applicant’s 5

year loss record for fire’? Inseranee coverage in the

amount of $100,000 was issued on August 13, 1969, hy

the American Casualty Company. Berland introduced tes-

timony that under the policy he was required to insure

the building for $100,000; that was 80% of the “nelual

eash value’? of the strueture, which is measured by re-

placement cost less depreciation of up te 50% of that

cost rather than by market value or purchase price, Ber-

land paid $18,000 for the building and spent approxi-

mately $29,000 on repairs.

Prior to the fire the building was two-thirds vaeant.

Rent revenues had fallen from $650 per month to $250

App. 5

per month. The building had been cited for 35 violations

of the Municipal Code of Chicago. The building was losing

money, and Berland had tried to sell it on contract on

three occasions. The purchasers reneged.

Albert Kyles was across the street from 715 South Lawn-

dale on the morning of the fire. Hle observed two white

men drive up to the building in a dark station wagon

at around 9 or 10 a.m. and park in front of the building.

The building was in a largely black neighborhood, One

man carried a ladder to the building; the other carried a

red gas ean. Judging from the way the man walked, the ean

was full when he entered the building and empty when he

left. The men remained in the building for three to four

minutes. Shortly after the men left, Kyles saw smoke

coming out of the building.

Kyles identified defendant Wolf as the man carrying

the gas can. Kyles had seen Wolf on three or four prior

oceasions at a paint store and another time when he paid

Wolf the $130 rent on an apartment his aunt had leased at

715 South Lawndale,

Kvelyn Mayberry saw a dark station wagon drive up to

715 South Lawndale on November 19, 1969. Two white

men sat in the ear for a while apparently looking to see if

anyone was coming. She saw one man take a ladder out of

the car. A second man took a silver-colored gasoline can

from the back of the station wagon. Ms. Mayberry iden-

tified the second man as defendant Wolf, whom she had

seen on several previous occasions. Tle had walked around

to the back of the building at 715 South Lawndale on

the Sunday prior to the fire. On Monday, he removed

the locks from the front door. On Tuesday he drove past

the building several times. On Wednesday, Wolf entered

the building with the gas can between 9:30 and 10 a.m.

App. 6

Ms. Mayberry went grocery shopping, and when she re-

turned she learned there had been a fire at 715 South Lawn-

dale,

Wolf testified on his own behalf. Tle stated he owned a

station wagon in 1969. Three alibi witnesses testified on

behalf of Wolf that they had had a meeting with him on

the morning of the fire. Attorney Samuel Siegel testified

Wolf was with him from 9:15 a.m. to 1:30) pam. on

vember 19, 1969, and that he and Wolf had Tne. ta

gether, He had no independent recolleetion of the ieet-

ing until he looked at his appointment calendar. he

calendar, however, contained no indication of a meeting

with Wolf on that day. It indieated only that Siegel had a

12:30 pam. appointment with a client named Grosso, — It

did note a meeting with Wolf both two days before and

two days after November 19.) Ted Allen testified he saw

Wolf in Siegel’s office on November 19, 1969, and had

lunch with Wolf. Tle had not remembered this meeting

until he met with Siegel, Wolf, and the third alibi witness

on the morning of the day he testified. The third witness,

Anton Caithaimer, testified he saw Wolf at Siegel’s law

office between 9 aan. and Topi. on November 19, 1969.

He had a cup of coffee with Wolf and Allen at about 12

pain. Impeachment evidence consisting of time and pay

records indicated Caithaimer was teaching school at that

time on that day. THe had been absent two days earlier.

The appellate court held that since Wolf was charged

in count | with burning the building without Berland’s

consent, if was impossible for a single attorney to repre-

sent both defendants. It noted that the trial court should

have pereeived that there existed the possibility of con-

flicting defenses, thus it was incumbent upon the trial

court to raise the issue sua sponte with respeet to both

defendants.

App. 7

A defendant must show an actual eonflict of

interest

manifested at trial in order to prevail in a constitutional

claim of ineffective assistanee of counsel due to joint

representation of co defendants by a single attorney. (Peo

ple v. Durley (1972), 53 Tl 2d 156, 159-61; People v.

MceCasle (1966), 35 Th 2d 552, 556; People v. Somerville

(1969), 42 Tl. 2d 1,9.) Other jurisdictions coneur in this

position (see United States v. Mandell (7th Cir. 1975), 525

I’.2d 671, 677, cert. denied (1976), 423 U.S, 1049, 46 I.

Nd. 2d 687, 96S. Ct. 774: United States vy. Lovano (2d

Cir. 1970), 420 F.2d 769, 773; United States v. Boudreaux

(Sth Cir, 1974), 502 F.2d 557, 558; United States v. La-

Riche (6th Cir. 1977), 549 F.2d 1088, 1095, cert, denied

(1977), 430 U.S. 987, 52 L. Ed. 2d 383, 97 S.Ct. 1687;

Inited States v. Christopher (9th Cir, 1973), 488 F.2d

849, 851; State v. Jeffrey (1973), 1683 Mont. 92, 96, 515

P.2d 264, 367; ef. United States vy. Smith 0th Cir. 1972),

464 F.2d 194, 197 (holding there must be prejudice)),

although there is no consensus as to how strong a show-

ing of conflict is required to establish a denial of the right

to counsel. See Iolloway v. Arkansas (1978), 435 U.S.

175, 484, 55 L. Md. 2d 426, 434, 98 S. Ct. 1173, 1178.

.The record is devoid of any evidence of an actual

confliet of interest. Berland argues that count IT was an

indicium of a fundamental confliet whieh could not be

cured by the fact that the count was nol-prossed. He

argues that because a single attorney represented both

defendants he could not prepare and try the case to show

that Wolf was motivated to burn the building without

Berland’s assent. Wolf coneurs that joint representation

preeluded the implementation of each defendant’s interest

in placing exclusive blame on the other.

These arguments are no different from those which

can be raised in any instance of dual representation, yet

App. 8

joint representation of co-defendants is not per se uneon-.

stitutional (//olloway ve Arkansas (1978), 485 US. 475,

482, 55 L. Md. 2d 426, 433, 98 S. Ct. 1173, 1178; see

People v. Durley (1972), 58 Th 2d 156, 160; Caaited States

v. Mandell (7th Cir, 1975), 525 Kid 674, 677). The de-

fendants merely speculate and attempt to create a con-

flict of interest through conjecture as to what might have

been shown, ‘They point to no aetual eonfliet, and the

record reveals none, This court will not disturb a judg-

ment on the basis of hypothetical confliets. People v. Me-

Casle (1966), 85 Th 2.552, 556; see also Kruchten v. Hyman

(Oth Cir. 1969), 406 F.2d 204, B11; State vy. Jeffrey (1978),

163 Mont. 92, 97, 515 P.2d 364, 267.

Both defendants denied their guilt. Berland entered a

simple denial. Wolf presented an alibi. There was no

inconsistency in these defenses, Defense counsel effee-

tively cross-examined the eyewitnesses who testified di

rectly against Wolf by questioning the aecuracy of their

festimony, Count To was nol-prossed before the defense

presented its evidenee, thus removing any abstraet possi-

bility of conflict. Further, separate eo-counsel appeared

for Wolf before the close of the State’s ease. The reeord

revealed no basis for either defendant to assert that the

other alone burned down the building. The two men were

longtime friends. Mven after the fire they ehose to be

represented by the same counsel. The faets are analogous

to those in People v. MeCasle (1966), 35 Th 2d 552, where

this court found it peoper for a single aitorney to repre-

sent both defendants. MeCasle asserted on appeal that his

co-defendant might have committed the robbery alone or

with someone else, but the record contained no evidence

fo support such a theory. There was no inconsisteney in

their defenses. Both defendants denied knowing one an-

other and presented alibi defenses.

App. 9

People vy. Ware (1968), 39 TI 2d 66, illustrates an

instance of conflict, in contrast to faets here. A’ single

attorney was appointed to represent two defendants. One

pleaded guilty and testified against the other, There was a

complete antagonism between the defendants mandating a

reversal of the conviction. In United States v. Games (7th

Cir, 1976), 529 F.2d 1038, a conflict of interest developed

when defense counsel failed to call Gaines as a witness.

The failure to call Gaines prevented him from retracting

his withdrawn confession whieh had been introduced with-

out the names of the co-defendants whom Gaines had

implicated. Tt also served to proteet his co-defendants, who

counsel had represented through part of the proceedings,

from the consequences of a cross-examination of Gaines

concerning his confession which had implieated them.

The recent decision by the United States Supreme

Court in /olloway vy. Arkansas (1978), 485 U.S. 475, 55

In Wd. 2d 426, 98 S.Ct. T1738, does not preelude joint

representation. The court held that where, unlike here,

appointed defense counsel raises the risk of a conflict of

interest, the failure of the trial court to appoint separate

counsel or take adequate steps to ascertain whether the

risk was too remote to warrant separate counsel deprives

the defendants of their right to the assistance of counsel,

This was based on the rationale in Glasser v. United States

(1942), 315 U.S. 60, 86 LL. Md, 680, 62 S. Ct. 457. There

the court held that for a trial judge to insist upon joint

representation in the face of objeetion undermines the

general duty of the trial court to see that the trial is

conducted with solicitude for the essential rights of the

accused, In Glasser the trial court appointed an attorney

retained by Glasser to represent his ce-defendant over

Glasser’s objection. Actual instances of conflict appeared

during the course of the trial,

App. 10

By contrast, counsel here was not foisted upon either

defendant, Nor does the record reveal any aetual eonfliet,

Mach defendant selected and retained the trial counsel to

represent him. No objection was made fo jomt representa

lion until after eonvietion even though additional eounsel

represented Wolf prior to motions at the elose of the

State ts enwe, See People vo Somerville (1969), 42 Th Gal 1,

Y: Slate vo Jeffrey (V9OTR), TO Mont. 98, O77, STD Poved B64,

367.

People vy Stoval (1968), JO TH, 2d 109, People vo Nester

(1977), OG TR Va 162, and People vo Coslet (1977), 67

HW 2a Te, rehed upon by the defendants are not eon

trolling None tivolved jot representation of two de

fondanty by ono single attorney, and there, untike here,

nefoal eoufliets die to competing commitments by the de

fonse attorney to other current or former clients existed,

In People vo Stove! counsel and his liw firm represented

the owner of the gewelry store the defendant was charged

With burglarizing. Tn People vo Wester counsel, prior to

becoming defense attorney, had worked on the ease asa

prosecutor, In People vo Costel coiisel represented both

the defendant who liad been charged with murdering her

husband and the administrator of the husband's estate. A

contliet arose sinee the estate stood to benefit, from oa

eonvietion, furthermore, all three cases invelved ap

pormfted counsel, rather than retained counsel as here, de

manding even closer serutiny for econfleting interests (Peo

ple ve Stovall (1968), JO TL 8d 109, TIS: People vo Coslet

(1977), OF WL Yad 127, 88s People vo Wester (1977 , 66

HH. val 162, 166),

This court adopted a por se confliet of interest rule in

People vy. Stoval (1968), 40° TI, 2d 109, 113, whieh pro

vides that af an attorney's commitments to others un

App. 11

dermine his loyalty to the defendant’s interest, if is un

necessary fo allege and prove prejudiee to sustain a: find.

inv of on violation of the right to counsel In formulating

that rule this court relied upon Glasser vy. United States

(1942), 315 ULS. 60, 75-76, 86 1. Nd. G80, 702, 62 S. Ct.

47, 467, where it was said:

“Po determing the precise degree of prejudice sus

fnined © * “is at onee diffienH and unnecessary. The

right to have the assistanee of counsel is too funda-

mental and absolute to allow courts to tdulwe in niee

calculations as to the amount of prejudice arising from

it chenaad.?’

Glasser of course concerned an instanee of enforeed dual

representation of defendants with aetual conflieting in

ferests. The record here, however, reveals no actual eon

fliets thus it is Hnnecessary fo apply the per se rule. See

alsa People vo Ware (1968), 39 TIL2d 66, 68.

Wolf argues that upon the appearanee of a possible

conthet if is necessary for the trial court to inquire into

the nature of the potential confliets. Some jurisdietions

require the trial court to admonish all jointly represented

co defendants about the possible econtliets inherent in dual

representation and to inquire whether each defendant has

voluntarily and with full knowledge of the consequences

decided to accept such representation. Tf sueh inquiry is

not made, the proseeution must show beyond a reasonable

doubt that a prejudieml confliet of interest did not exist to

avoid reversal of the convictions for lack of assistance of

counsel (See lord vy. United States (D.C Cir 1967 , aie

hiv 128, 125, relying on Lollar vy. United States (D.C. Cir.

1967), S76 Phil 243, 247; State v. Olsen (1977),

Minn. ; , 2o8 NW S98, 907-08; cf. United

States vo Lawrie (Sth Cir, 1977), S68 F.2d O98, 104-05

App. 12

(placing duty on a trial court to make inquiry but holding

that a presumption of prejudice does not arise if the trial

court fails to make inquiry and refusing to shift the burden

to the proseention); United States vy. Foster (1st Cir.

1972), 469 F.2d 1,5 Cplacing duty of inquiry on the eourt

but only shifting burden of persuasion to the proseention

to show that the existenee of prejudiee was improbable

where inquiry was not made).) At the opposite end of the

spectrum, the Seventh Cirenit Court of Appeals holds only

that the trial court should be watehful for indicia of

confliet during trial Only when an actual eonfliet appears

is it necessary for the trial court to bring the faet of its

existence to the attention of the defendant. (l’nited States

v. Mandell (7th Cir. 1975), 525 F.2d G71, G77; United

States v. Gaines (7th Cir. 1976), 529 F.2d 1088, 1043-44.)

Other jurisdictions take intermediary positions short of

requiring judicial inquiry in all eases of joint representa

tion, See United States vo Lawrie (Sth Cir, 1977), 568

h.2d 98, 102-03, and eases cited therein; State v. Jeffrey

(1978), 168 Mont, 92, 98, 515 P.2d 3864, 368 (suggesting

it would be wise to make sueh inquiry).

This court has refused an invitation to require. trial

judges to ascertain that co-defendants’ decisions to pro-

ceed with one attorney are informed (People v. Somerville

(1969), 42 Th 2d 1, 10). The erneial determination. is

whether there is a confliet, since absent such confliet there

is no threat to a defendant’s right to the assistanee of

separate counsel, Neither Glasser vy. United States (1942),

315 U.S. 60, 86 1. Kd. G80, 62S. Ct. 457, nor Holloway v.

Arkansas (1978), 485 U.S. 475, 55 tL. Kd. 2d 426, 98 S.

(ft. 1178, indicate that a pretrial inquiry and waiver of

separate counsel is mandated in all cases of joint repre-

sentation. Because joint representation is not per se uneon-

stitutional there is no need to require judicial inquiry un-

App. 18

Hil the confliet appears. The language in Glasser and [ollo-

way that itis the duty of the trial judge to see that the trial

is conducted with solicitude for the essential rights of the

acensed is directed specifically to trial court. insistence

upon joint representation where counsel or the defendant

has requested separate representation, Sinee there was

no conflict here, judieial inquiry was not required,

The appellate court conelnded there was insufficient evi

denee to support the convictions, On the basis of the

record before us, we do not agree,

Wolf challenges the weight and eredibility of the testi-

mony of the two eyewitnesses. Tlowever, in a bench trial

if is the provinee of the trial court to determine the

erodibility and weight of the testimony, to resolve the

inconsistencies and confliets therein, and to render its de-

cision accordingly. This court will not substitute its judg-

ment oon these matters unless the proof is so unsatis

factory that a renonable doubt of guilt appears. The trial

court, unlike the reviewing eourt, was in a position to ob-

serve the witnesses. People vy. Pagan (1972), 52 Tl. 2d

526, 534; People vo Lofton (1977), 69 I. 2d 67, 72-73.

The testimony of the two eyewitnesses was largely con

sistent both internally and when compared with the tes-

fimony of the other eyewitness. Both eyewitnesses agreed

they saw two men enter the building between 9 and 10

am. One man, whom they identified as Wolf, carried a

gas-can info the building. Both had seen Wolf on several

prior oceasions lending further eredence to their identifiea-

tion of him. Both identified Wolf in eourt. There were

some inconsistencies in the testimony, Kyles said the gas

ean was red, Ms. Mayberry said it was silver colored, There

was some confusion concerning the amount of hair Wolf

had on the day of the fire as well as a diserepaney in the

App. 14

testimony about the relative heights of the two men who

entered the building. However, it is established that [a]

conviction will not be set aside merely beeause the evi-

denee is eontradietory.”’ (People v. Guido (1962), 25 Th

2d 204, 2ZO8; seo also People vo Ahis (1976), 68 Th 2d 296,

298.99; People vo Pagan (A972), 52 Wh2d 525, 533-34.)

The trial judge, in handing down his decision, stated that

he was impressed by the eredibility of the eyewitnesses

and noted that they had no reason whatsoever to lie. We

pereeive no basis to disturb the findings of the trial eourt.

The strength of the eyewitness testimony was not di

minished by Wolf's alibi defense witnesses. The aliki

witnesses’ festimony was thoroughly impeached. Ted Allen

had no reeolleetion of the date of the meeting until he

spoke with Wolf, Caithaimer, and Siegel on the day he

testified. Siegel had no independent recolleetion of the

meeting until he looked at his appointment ealendar, but

the calendar did not note a meeting with Wolf on that day.

Caithaimer was teaehing sehool when he testified he was

meeting with Wolf, Siegel testified contrary to Caithaimer

and Allen coneerning who had lineh with Wolf. The trial

judge was not obligated to believe the testimony of the

alibi witnesses over the positive identifieation of the ae-

eused., (People vy. Jackson (A973), 54 Th 2d 148, 149;

People v. Catleit (1971), 48 Th 2d 56, 64.) Whether the

alibi evidenee ereated a reasonable doubt of gwuilt was a

question primary for the trial court (People v. Garkus

(1934), S58 Tl. 106, 111-12), and here the trial judge in-

dieated the alibi evidence did net convinee him that the

alleged meeting took place.

The appellate court placed undue emphasis on People

v. Gardner (1966), 35 Tl 2d 564, 571-73. It is elearly

factually distinguishable. There, as here, guilt hinged upon

the conflict between the strength of the identifieation tes-

App. 15

fimony and the strength of the alibi defense. Ino such

eases, the alibi evidenee cannot be ignored. However, this

court noted that the testimony of a single witness that is

positive and eredible is sufficient to eonviet even if it is

contradicted by the aceused, In that case the identification

of the defendant by the complaining witness was weak-

ened by several factors, including inconsistent deseriptions

of the defendant and the laek of a lineup when the de-

fendant was first identified, while the defendant’s alibi

was positive and unimpeached, Also, the alibi was not a

recent eoneoetion. By contrast the identification here was

strong, and the alibi was impeached. Further, the alibi

defense was of reeent origin. The defense did not explore

it until after trial began and several years after the in-

cident,

Wolf argues that the testimony of Mayberry and Kyles

is inherently imeredible and, therefore, is insufficient to

support a conviction. Tle cites People vy. Dawson (1961),

22 TN. 2d 260, 265-66. In that case the witnesses testified

that a police officer went into a hotel taxi offiee where he

was well known and demanded money from a driver at

gunpoint in the presence of many witnesses after identify-

ing himself as a police officer, Tle then remained in the

hotel and had a drink at its bar. The witnesses here did not

recount a blatantly preposterous story. They testified that

two men entered a building. One man earried a gas ean,

and the other earried a ladder. They were men who had

heen seen working around the building on prior occasions.

Their conduct, therefore, was not extraordinary like the

alleged conduet of the defendant in Dawson.

Wolf also challenges the identification testimony by

Mayberry and Kyles on the grounds that it was suggested

by a mug shot of Wolf shown to them before trial. He did

not challenge the photographic proceedure prior to trial.

App. 16

The witnesses were shown this picture in connection with

the civil trial in the United States distriet court by an

attorney for the insuranee company before Woll was in-

dieted, We refrain from addressing the merits of this

contention sinee it} has been waived, People v. Pierce

(1972), 52 Il. 2d 7, 10.

Jorland argues that the evidenee against him was. eir-

cumstantial, and therefore insufficient to support the eon

vietion. Tt consisted of depositions and transeripts of

proceedings from the civil ease in the United States district

court, housing files, the insuranee applieation and poliey,

and evidence that the man who apparently notarized the

appliention had died before the date of the applieation.

Yet, even if the evidence was eireumstantial, if is clear that

if ean support a econvietion as long as it produces a

reasonable and moral certainty that the defendant eom-

mitted the erime. (People v. Fletcher (1978), 72 TL2d 66,

71; People ve Williams (1977), 66 TIL 2d 478, 484-85.)

Berland and Wolf were friends and business associates for

80 to 85 years, Wolf was involved in the aequisition and

management of the property for Berland. The addresses of

one of Berland’s aliases, listed as a beneficiary of the land

frust, were business addresses of Wolf. Wolf's nephew was

atone point named as a beneficiary as security for a loan

from Wolf to Berland. The building was losing money

hefore the fire, and Berland was trying to sell it. He was

compelled to take the property back beeause of the fail-

ures of the purchasers to meet the eontraet obligations.

The poor condition in whieh Berland maintained the build-

ing had given rise to an action in the housing eourt for

necessary repairs. There were 35 violations of the Mu-

nieipal Code of Chicago, including the presence of vermin

and structural violations.

App. 17

Borland’s appleation for fire insurance contained a false,

notarized statement of his personal history of fire losses,

Berland had brought the application to Wolf to have it

notarized, The notary’s name and seal were those of a

man who had died 9 months before the application was

notarized. The evidenee indieates an intent to defraud an

insuranee company, Berland, of course, can be accountable

for the offense even though he did not physically set fire

to the building (HL Rev. Stat. 1969, eh. 38, par. 5-2). We

find there was sufficient evidence to support his eonvie-

tion.

The appellate court) determined that the trial eourt

erred in admitting the housing court files on relevancy

grounds because the properties were not owned by the

defendants, However, all were owned either by one of the

defendants or their aliases, Further, the trial eourt did not

consider sintlar unexplained fires on those properties. The

evidence was admitted solely to show the defendants’ busi-

ness relationships in other similar types of property,

Berland contends that the trial court gave undue and

prejudicial consideration to the faet that the property was

insured for almost three times its initial cost and the eost

of subsequent repairs. Tle argues also that he was preju-

dieed by his counsel’s failure to introduce evidence of the

replacement cost of the building after presenting evidence

that insurance is ecaleulated on the basis of replacement

cost rather than aequisition cost. Tlowever, as the trial

court noted, the gist of the fraud was the burning of the

building to colleet insuranee proceeds regardless of the

replacement eost and whether the building was overinsured

or underinsured.

’ ® =. .

Berland and Wolf each argue it was error to admit

prior statements of their co-defendant. That evidence was

admitted pursuant to a stipulation subject only to an

App. 18

objection to references to prior fires, and there is no

indi¢ation in the reeord that the trial judge, sitting as the

trier of facet, improperly considered the prior statements of

one co-defendant as substantive evidenee against the other.

Under these cireumstanees there is no reason to deviate

from the sound presumption that the court ina beneh trial

relies only on proper evidenee in reaching a determination

on the merits (People vy. Gilbert (1977), 68 Th 2d 252,

258.59; People ve Peleqari (1968), 39 Th 2d 568, 574-75;

People vy. Delno (1966), 35 Th 2d 159, 162).

Because of ifs disposition of the ecanse, the appellate

court did not reach all the issues presented to it, but as

noted in Nefson v. Union Wire Rope Corp. (1964), 31 TL

21 69, 112-13, “it has frequently been indieated that

where this court aequires jurisdietion for any reason, it has

jurisdiction fo pass upon all questions, exeept those

requiring a weighing of the evidenee, proper to be passed

upon and disposed of in the ease. (Goodrich v. Spraque,

376 TN. 80; Bowman vy. Mlimois Central Railroad Co., WWM

2d 186.) Aside from considerations going to the avoidanee

of multiplicity of appeals, there are in our opinion unique

circumstances here which, as a matter of diseretion and

justice, impel us fo use our powers on review to the utmost

and to finally dispose of the ease”? These proceedings

arose out of a fire whieh oeeurred in 1969 for which the

defendants were indicted in 1978. The parties have briefed

the remaining issues of whether retained counsel was

competent and whether the State violated due process by

listing the witness Mayberry twice in response to dis-

covery, onee under her own name and onee under the

name of her common law husband. Moreover, the reeord

enables us to fully determine these matters. (County of

Cook v. Lloyd A. Fry Roofing Co. (1974), 59 TI. 2d 131,

138-39.) We shall therefore address these questions.

App. 19

Both Berland and Wolf ehallenge the competeney of

their retained trial counsel, After an examination of the

record in the instant ease in light of the applicable test, we

‘annot say that eounsel was incompetent. Te eondueted

discovery, sought fo suppress evidence, and vigorously

eross examined the State's witnesses. Wolf also received

the services of additional counsel who entered his appear

anee during the latter part of the presentation of) the

State's ease. Defendants were entitled to competent, not

perfeet, counsel. People vo Murphy (1978), 72 Th 2d 421,

438,

Wolf arenes, on the basis of Brady v. Maryland (1968),

873 US. 88, 10 1, Md. 2d 215, 88° 8.Ct. 1194, that he was

denied a fair trial dne to the proseention’s failure to noti-

fy defense counsel that the witnesses Ms. Mayberry and Ms,

MeGowen are the same individual The two names ap-

peared ona list presented to the defense in response to a

discovery request for a list of witnesses. The addresses

under the two names were the same. The witness had

used the name MeGowen, her common law hushand’s name,

when she testified in the United States distriet eourt but

used her own name, Mayberry, when she testified in the

criminal action now pending.

The United States Supreme Court held in Brady that

the proseeution’s suppression of a confession by the de.

fendant’s companion deprived the acensed of due process

since the evidenee was material to his guilt. By econ

trast, in the instant ease the prosecution had not sup

pressed any evidence, Both names were furnished to

the defendants. Further, as this court has noted, in de-

termining whether if was error to allow witnesses to

testify even though they had not been listed in response to

discovery, the function of the list of witnesses is to prevent

App. 20

surprise and afford an opportunity to combat false tes-

timony. (People vy, Steel (1972), 52 TM, 2d 442, 450.) In

the present ease, the defendant was afforded an oppor-

tunity to examine the witness under both her names. The

double listing did not deprive Wolf of any evidence ma-

terial to his guilt; thus he was not denied a fair trial See

United States vo Aaurs (A976), 427 U.S. 97, 49 L. Ed, 2d

342, 96S, Ct. 2392.

Defendants also contended in the appellate court. that

the State had failed to prove the corporate existence of the

insurance company alleged to have been defrauded. Kven if

the State failed to offer testimony to establish the insur-

anee company’s corporate existence, courts may take ju-

dicial notice of its existence sinee if is a matter of publie

record. (See Department of Public Welfare v. Bohleber

(1961), 21 Tl. 2d 587, 598.) Defendants were in no way

prejudiced by any failure to prove corporate existence.

They were notified of the charges against them and are

protected from double jeopardy; the indietment clearly

identified Ameriean Casualty Company as the insurance

company alleged to have been defrauded and enabled the

accused to prepare their defenses (People v. Dickerson

(1975), OF TL 2d 580, 582; People v. Grieco (1970), 44

Hl. 2a 407, 409). Defendants are not entitled to reversal of

their convictions,

For the reasons stated, the judgment of the appellate

court is reversed, and the judgment of the cireuit court is

affirmed,

Appellate court reversed;

circuit court affirmed.

App. 21

Supplemental Opinion on Denial of Rehearing

Defendant Albert. Berland’s petition for rehearing is

denied. Defendant Louis Wolf's petition for rehearing calls

this court’s attention to issues raised in two petitions for

relief under seetion 72 of the Civil Praetice Aet (TIL Rev.

Stat. 1975, eh. 110, par. 72) filed in the eireuit’ court

during the pendency of his direet appeal to the appellate

court, whieh was filed on September 27, 1974. The first

section 72 petition was filed on March 18, 1975; the see-

ond was filed on September 28, 1976, with a supplemen-

tal petition filed on Oetober 8, 1976. On motion of the

State, the trial eourt dismissed the first petition on July

18, 1975, on the ground that the issues raised were not

properly before the court in the seetion 72 petition, The

memorandum of orders ineluded in the reeord and the

notiee of appeal in the seeond section 72 petition indicate

that if was dismissed on February 14, 1977. Wolf prose-

ented separate appeals to the appellate court, which eon-

solidated them on its own motion on Mareh 2, 1978. This

court, on Mareh 21, 1978, allowed the State’s motion to

transfer the section 72 appeals to this court and to eon-

solidate them with the direct appeal then pending.

No oral argument was presented to this court eoncern-

ing the points raised in Wolf's seetion 72 petitions when

the consolidated cases were argued on May 10, 1978. Wolf’s

petition for rehearing clearly states this but argues that

Wolf has been denied his right to have his appeal econ-

sidered, Without deeiding the nature of the asserted right

to appeal, we consider whether the trial court erred in

dismissing the petitions. The points relied upon are

raised in the two sets of appellate briefs transferred to this

court without change in substance or caption,

The virenit court properly dismissed the first seetion

72 petition. A section 72 proceeding is the forum in which

I

App. 22

‘to correet all errors of fact occurring in the proseeution

of a cause, unknown to the petitioner and court at the time

of trial, which, if then known, would have prevented the

judgment.”” (Ephraim vy. People (1958), 13° Ti. 2d) 456,

458; see also People vy. Minton (1972), 52 TI. 2d 239, 248.)

Since most of the exhibits relied upon in the appellate

brief were incorporated in the post-trial proceedings and in

the record on direct appeal, a section 72 petition to ex-

amine them would be unwarranted. The trial court had

already evaluated the exhibits in the post-trial proceedings ;

it had held that the evidence contained therein either was

known or should have been known to the defendant prior

to trial and, in any event, did not justify a new trial sinee it

would not have probably changed the result, The trial

court had also coneluded, after consideration of the ex-

hibits, that trial counsel was not incompetent,

Specifically, the matters raised in Wolf’s seetion 72 ex-

hibits Nos, 2, 4, 5, 6, 7, 9, 14, 21, and 23 were ineluded

in the post-trial motion, were argued at the post-trial

hearing, and were incorporated in the record on direct

appeal. Those exhibits contained police and fire depart-

ment reports of interviews with testifying and nontesti-

fying witnesses, transerihed statements and a deposition of

testifying and nontestifying witnesses, and the Federal

testimony of testifying witness Evelyn Mayberry. Varia-

tion between Ms. Mayberry’s testimony at trial and her

prior testimony in the United States distriet court was

raised on direet appeal in this court, The issue of whether

Wolf was bald and the defense’s failure to introduee photo-

graphs of Wolf taken in 1968 and 1969 was also raised in

the post-trial motion and at’ the post-trial hearing. A

section 72 petition is not designed to provide a general

review of all trial errors nor to substitute for direct appeal.

App. 28

(People v. Jennings (1971), 48 Ll 2d 295, 299; People v.

Mamolella (1969), 42 Ul. 2d 69, 72; Hphraim vy. People

(1958), 13 Tk 2d 456, 460.) Points previously raised at

trial and other collateral proceedings cannot form the basis

for a section 72 petition. See Lphraim v. People (1958), 13

Ill. 2d 456, 459; Brunswick v. Mandel (1974), 59 Til. 2d

502, 504.

The petition argues that the State obtained Wolf’s econ-

viction through the suppression of evidence tending to

negate his guilt in violation of our Rule 412 (50 TIL 2d BR.

412). However, the issue of the State’s alleged suppression

of evidence and noncompliance with discovery, including

matters specifically raised in the seetion 72 petitions, were

presented to the trial court at the post-trial proceedings

and cannot be raised again. The fact that the State did not

call all witnesses to the fire was alse brought to the at-

tention of the trial court in the post-trial proceedings.

.

Although a challenge to identification procedures was

raised and addressed in the post-trial proceedings and on

direct appeal, Wolf again raises the issue in his seetion 72

petition. Exhibit No. 17 is a hearsay report of interviews

with witnesses allegedly conducted by Wolf's investigator

after the trial court entered its judgment, The report

indicates that after the fire the police showed the witnesses

a mug shot of Wolf and inaccurately told them that the

man in the photograph had already been arrested and

charged. Exhibit No. 20 is a purported affidavit by Ms.

Mayberry that someone at the police station pointed Wolf

out to her as the arsonist a couple of months after the fire

so she could identify him at trial. In response, the State

filed two affidavits by Thomas Begg, an Illinois Bureau of

Investigation agent, that witness Evelyn Mayberry and

Albert Kyles told him that they never gave a post-trial

statement to Wolf’s investigator and that he had never

App. 24

pointed Wolf out to Ms. Mayberry. The State also asserts

that Ms. Mayberry’s signature on exhibit No. 20 is: dif-

ferent from another signature from a month later. The

State points out that all three witnesses to whom Wolf's

arguments point were known to the defense prior to trial.

Robert Drain and Albert Kyles were on the State’s list of

witnesses, Ms. Mayberry was in fact interviewed prior to

trial. There was nothing to indicate that Wolf was pre-

vented from diseovering and raising these matters at

trial. (Glenn v. People (1956), 9 TI 2d 335, 340; see

People v. Collethe (W971), 48 Th 2d 185, 187-38.) Further,

the allegations and supporting documents were merely

cumulative and would not have prevented the judgment

rendered beyond a reasonable doubt. See Williams: v.

People (1964), 31 TI. 2d 516, O18; Kphraim v. People

(1958), 18 Tl 2d 456, 458; ef. Chapman vy. California

(1967), 886 U.S. 18, 17 L. Kd. 2d 705 82S. Ct. 824.) The

two testifying witnesses had seen We? | rior to the fire as

well as on the day of the fire, prov an adequate inde-

pendent basis for the in-court identin..¢ion, (See People

v. Williams (1975), 60 Th 2d 1, 10-11.) These exhibits

did not present a basis for section 72 relief,

The first petition argues that Wolf's convietion was the

result of perjured testimony and relies on the exhibits filed

to support the allegations. A section 72 petition ean pro-

vide a basis for relief from a judgment based on perjury.

(People v. Jennings (1971), 48 Tl. 2d 295, 298; People v.

Lewis (1961), 22 IL2d 68, 70-71.) Llowever, the trial court

did not err in dismissing the petitions sinee all the ineon-

sistencies in the witnesses’ statements charged in the peti-

tions as amounting to perjury were before the court in

the post-trial proceedings. Counsel for Wolf presented a

detailed analysis of the evidence at the post-trial hearing

and intimated that the testimony given was false. Fur-

App. 25

thermore, the allegations-in the petition and supporting

document do not support a charge of perjury and therefore

offered no basis for an evidentiary hearing. (See People

Jennings (1971), 48 Tb2d gr 298-99; ef. Withers v.

People (A961), 25 TN. 2d 131, 185.) An examination of

the exhibits reveals no more than diserepaneies in deserip-

tions of defendant and what he was carrying given by dif-

ferent witnesses and by the same witnesses at different

times, and variations in what different witnesses reported

they saw, rather than the knowing use of false testimony.

This does not indieate perjury. (See People vy. Strother

(1972), 53 Th 2d 95, 100-01; People v. Lagios (1968), 39

Hl. 2d 298, 301.) In sum, the trial court did not err in

dismissing the petition.

The second section 72 petition is barred by the two-year

limitations period applicable to seetion 72 proceedings (IIL.

Rev. Stat. 1975, eh. 110, par. 72(3); People vy. Colletti

(1971), 48 Hk 2d 185, 187.) The petition was filed on

September 23, 1976, and the supplement to the petition was

filed om Oetober 8, 1976, which was more than two years

after the judgment of convietion was entered and the sen

tence imposed on April 9, L974. The bar of the statute of

limitations is tolled only by legal disability, duress, or

fraudulent concealment of the grounds for relief. (IL Rev.

Stat. 1975, ch. 110, par. 72(3); People v. Colletti (1971), 48

Il. 2d 185, 187; Withers v. People (1961), 28 Ti. 2d 131,

133.) Although Wolf, in reply to the State’s motion to

dismiss, alleged fraudulent coneealment and generally

argues that the State suppressed evidence, the trial court

dismissed the section 72 petition following a hearing on the

issue of fraudulent concealment and an examination of ex-

hibits filed in support of the petition. A review of the hear-

ing testimony by the two assistant State’s Attorneys who

conducted the prosecution indicates no basis on which to

conelude that the State fraudulently concealed evidence

App. 26

from the defendant and indicates that the judgment of dis-

missal is not against the manifest weight of the evidence.

The substance of the testimony was that the prosecutors

had never seen exhibits Nos. 3, 5, and 6, consisting of an

appraisal of fire damage and two fire department reports,

until several weeks prior to the hearing on the second

petition, and that exhibit No. 2, the fire investigation re-

port, was made available to defense counsel. In faet, ex-

hibit No. 2 was attached to both the first section 72 petition

and the post-trial motion. Fire Marshal Lynch, whose af-

fidavit Wolf obtained in November 1976, was ineluded on

the State’s list of witnesses.

The bar of the statute of limitations cannot be avoided

by asserting that the second section 72 petition was merely

a continuation of the first. Attorney Witney conceded at the

hearing on the second petition that it was not a continuation

of the first. The first proceedings had already terminated

at the trial level, and a notice of appeal had been filed on

August 16, 1975, more than a year prior to the filing of the

second petition.

Kiven if we put aside the bar of the statute of limita-

tions, an examination of exhibits reveals no factual allega-

tions sufficient to sustain Wolf's charge of perjury. (See

People v. Jennings (1971), 48 Ill. 2d 295, 299.) The new

exhibits indicate only that the fire battalion chief and fre

marshal who were present during the fire did not know

what caused it and placed the point of origin at a different

place than did the fire inspector who examined the premises

after the fire and provided evidence at trial that the fire

had been set. The fire damage appraisal indicates only

that the dollar amount of damage did not correspond direcet-

ly to the point of origin of the fire and the intensity of the

heat in light of the size of the rooms affected and the pres-

ence of damage not attributable to the point of greater

App. 27

intensity of heat. The fire inspector’s in-court testimony

did not contradict his written fire report. Thus the exhibits

failed to support an allegation that the conviction was

based on the knowing use of false testimony.

For the reasons stated, the judgments of the cireuit court

dismissing Wolf’s seetion 72 petitions are affirmed and the

petition for rehearing is denied.

Judgments affirmed;

rehearing denied.

App. 28

APPENDIX B

UNITED STATES OF AMERICA

State of Illinois,

Supreme Court—ss.

Order of the Supreme Court, together with a copy of

the opinion filed December 4, 1978, and supplemental

opinion filed February 20, 1979, upon denial of petitions

for rehearing.

Filed October 6, 1977.

In Witness Whereof, | have hereunto subseribed

my name and affixed the Seal of said court this

16th day of May 1979.

/s/ Clell L. Woods — (Clerk)

(SEAL) Supreme Court of the State of Illinois